BAR REPORT - Capitol Report

A look at NJ's efforts to legalize marijuana

By New Jersey State Bar Association|July 30, 2018 at 08:00 AM

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This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.

Let’s Talk Cannabis: The Latest on New Jersey’s Efforts to Legalize Marijuana

Among the many legislative issues under discussion in the halls of the State House, from school funding formulas to budget spending to sports betting, two bills—both focused on marijuana—have the legal community scrambling to determine how their passage would impact the practice of law.

S-2702 (Scutari/Sweeney) is a massive 117-page bill that legalizes the possession and personal use of marijuana for persons age 21 and over and creates the Division of Marijuana Enforcement and a licensing structure. It establishes a graduated tax rate on marijuana sales to be implemented over several years; outlines procedures for local governments to enact ordinances governing the time, place and manner of sales of marijuana; sets forth procedures for facilities to obtain licenses for the sale of medical and recreational marijuana; and permits expungement of marijuana convictions.

S-2703 (Scutari/Sweeney), dubbed the New Jersey Marijuana Legalization Act, covers the same points as S-2702, but also expands access to medical marijuana. Under current law, medical marijuana usage in New Jersey is limited to those diagnosed with a “debilitating medical condition.” Under the proposed legislation, medical marijuana would be available to individuals diagnosed with a “qualifying medical condition” as a treatment of first resort. The list of qualifying medical conditions includes, among other illnesses, epilepsy, post-traumatic stress disorder, glaucoma, human immunodeficiency virus, acquired immune deficiency syndrome, cancer, multiple sclerosis and muscular dystrophy.

The New Jersey State Bar Association has created a Cannabis Committee to review legislation, hold seminars and explore the legal issues surrounding cannabis, from business planning to criminal matters. Michael F. Schaff, of Wilentz, Goldman & Spitzer, and Seth R. Tipton, of Florio Perrucci Steinhardt & Cappelli, LLC, have been appointed co-chairs of the committee, which includes members from various practice areas who will weigh in with their professional perspectives on cannabis legislation.

As legislators continue to debate the topic, more questions than answers are being generated outside the State House. Just last week, Attorney General Gurbir Grewal asked that municipal prosecutors in New Jersey seek adjournments until Sept. 4 or later on any pending matters involving marijuana-related offenses so the Attorney General’s Office can develop appropriate guidance for prosecutors. Key questions center around which offenses would become eligible for expungement if marijuana were to become decriminalized and other factors relative to expungement.

In the employment arena, questions include whether an employer could terminate an employee who tests positive for marijuana and the conflict that could exist between state and federal laws.

In the local government area, at least 28 municipalities in New Jersey have passed measures to ban or strictly limit marijuana businesses within their borders. Questions will remain regarding how those bans will affect neighboring municipalities, the conflict between state legislation and these existing measures, and other issues.

All eyes are on the Legislature to act in September. As the state prepares for the onslaught of new regulations, the NJSBA remains poised to monitor all aspects of the impact of cannabis legislation on the legal community.

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On April 5, the Pennsylvania Department of Health, which oversees the commonwealth’s medical marijuana program, initiated phase II of its licensing process. New Jersey is also in the midst of expanding its existing medical program, as well as potentially legalizing adult use in the near future.

Gather round employers, there’s a battle outside and it’s ragin’. The new employment laws will soon shake your windows and rattle your walls, for the times in New Jersey they are a-changin’.

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